The opinion of the court was delivered by: Richard Mills, District Judge:

OPINION

An issue of res judicata.

If state law would require that the case be barred and the parties have
had a full and fair opportunity to litigate the case, a federal court
must also bar the case,

I. Background

Shirley and William Cooper owned and operated the Little Moppet Day
Care Center (the Center) located in Springfield, Illinois. The Coopers
applied to the Department of Children and Family Services (DCFS) for a
license to operate the day care center in July 1987. During the pendency
of the Coopers' application, they ran the Center under a permit issued by
DCFS. On January 27, 1988, DCFS received an anonymous call. claiming that
children were being left unattended at the Center. This call initiated a
series of DCFS investigations of the Center.

From January 1988 to June 1988 three visits were made to the Center by
DCFS licensing representatives. These visits revealed several relatively
minor licensing violations which the Coopers quickly rectified. In
September 1988 DCFS issued a license to the Coopers authorizing them to
run the Little Moppet Day Care Center.

Between December 5, 1988 and March 20, 1990, DCFS licensing
representatives visited the Center eleven (11) times.*fn1 On four of
these visits the Center was found to be in compliance with licensing
rules. On the remaining seven visits, however, the Center was found to be
in violation of several licensing rules. The most significant violations
observed were improper staff to child ratios, unattended children, and
improper grouping of children of different ages.

Individually, these violations were not significant enough to warrant
revoking the Coopers' day care license. The repeated occurrences of these
violations over a sixteen month period, however, resulted in a DCFS
decision to revoke the Coopers' license. On May 21, 1990 DCFS mailed the
Coopers a notice of intent to revoke their license. The Coopers timely
mailed to DCFS their request for an administrative hearing and for a copy
of the charges against them. On June 13, 1990, Defendant D. Jean
Ortega-Piron wrote Plaintiffs that her staff would schedule the hearing
requested by the Coopers concerning their license.

DCFS continued to closely monitor the Center. Between June 1, 1990, and
December 7, 1990, licensing representatives of DCFS investigated the
Center thirteen (13) times. These visits continued to result in findings
of licensing violations. The most critical violations continued to be
improper child to staff ratios, unattended children and improper grouping
of children.

Prior to October 30, 1990 the Coopers had a contract with DCFS to
provide day care services for children DCFS had taken into custody. On
October 31, 1990 the Business Administrator of the DCFS Springfield
Regional Office, Defendant Frank Melchiorri, terminated the Plaintiffs'
contract. Plaintiffs allege that the termination of the contract resulted
in the loss of fourteen children.

Notice of Hearing and a Statement of Charges were sent to Plaintiffs on
November 15, 1990. The date for the administrative hearing was set for
January 8, 1991. On November 30, 1990, Defendant Robert Blackwell sent a
letter to the parents of the children enrolled at the Center. This letter
stated that serious licensing violations existed at the Center, which
jeopardized the health and safety of the children. The letter encouraged
the parents of children at the Center to seek other day care arrangements
and offered help in finding such arrangements.

Defendants filed their motion for summary judgment claiming that the
Plaintiffs' claims are barred by res judicata. Defendants argue that
these parties have litigated this cause of action in a previous suit and
have received a final decision from a court of competent jurisdiction.

The Plaintiffs agree, in part. Plaintiffs admit that the charges
against Defendants Suter, Ortega-Piron, Detwiler and Harris are barred by
res judicata. Plaintiffs argue, however, that the claim against Defendant
Blackwell is not barred. The claim against Blackwell is that he
unlawfully retaliated against Plaintiffs for their decision to demand an
administrative hearing. The alleged retaliation came in the form of the
letter Blackwell sent to the parents of the children attending the
Center.

Plaintiffs claim that the count against Defendant Blackwell is not part
of the same cause of action as the counts against the remaining
Defendants, The counts against the other Defendants, according to
Plaintiffs, rely on facts that Plaintiffs' administrative hearing was not
in accordance with DCFS regulations and, therefore, violated Plaintiffs'
due process rights. The count against Blackwell, Plaintiffs argue, can
stand regardless of whether or not Plaintiffs received due process at
their hearing.

Although in the first suit DCFS was the only named defendant and in
this case individual officers of DCFS are the Defendants, the parties are
the same. "The effect of res judicata . . ., is the same whether the suit
is brought against an administrative body or its individual members."
Edwards v. City of Quincy, 124 Ill. App.3d 1004, 1009, 464 N.E.2d 1125,
1129, 80 Ill.Dec. 142, 146 (4th Dist. 1984) (citing Consolidated
Distilled Products, Inc. v. Allphin, 73 Ill.2d 19, 382 N.E.2d 217, 21
Ill.Dec. 853 (1978)).

2. Identity of Causes of Action

Illinois has two different tests to determine if a prior suit should be
given res judicata effect. Pirela v. Village of North Aurora, 935 F.2d 909
(7th Cir. 1991). The first test is labeled the same evidence test. Under
this test the court must determine whether the same evidence would
sustain both actions. Id. at 912 (citing Hagee v. City of Evanston,
729 F.2d 510, 513 (7th Cir. 1984)). The second test is labeled the
transactional test. Under this test the court must determine if the two
suits arise out of the same group of operative facts. Hagee, 729 F.2d at
513.

Under either of these tests, Plaintiffs' claim against Defendant
Blackwell constitutes the same cause of action. Plaintiffs claim that
Defendant Blackwell unconstitutionally retaliated against Plaintiffs when
they chose to exercise their due process right to an administrative
hearing. This retaliation, argues Plaintiffs, "did by fiat what could
only be properly done by the licensing authorities — he effectively
closed the Coopers' day care center down by using the weight and
authority of the government to state that the children were in danger and
the Plaintiffs were in violation of the licensing standards. . . ."*fn2

This argument could have been made by Plaintiffs during their
administrative hearing and then pursued to the Circuit and Appellate
Courts. Plaintiffs, however, did not pursue this claim, although they
could have. "The purpose of administrative review is to make certain the
agency has acted within its judicial bounds defined by law, to guard
those statutory and constitutional rights guaranteed to one subject to
administrative action, and to ascertain whether the record supports the
order issued." Edwards, 124 Ill.App.3d at 1012, 464 N.E.2d at 1131, 80
Ill.Dec. at 148 (citing Piotrowski v. State Police Merit Board,
85 Ill. App.3d 369, 374, 406 N.E.2d 863, 867, 40 Ill.Dec. 660, 664 (1980)
(emphasis added)). It is clear that Plaintiffs would have to use the same
proof to establish their federal § 1983 claim against Blackwell as
they could have presented at the administrative hearing to show that
DCFS, through Blackwell, violated Plaintiffs' constitutional rights.

Plaintiffs had the opportunity to raise their retaliation claim during
the administrative hearing and through judicial review of the hearing
officer's determination. Blackwell's letter was entered into evidence at
the administrative hearing and some testimony was offered in regards to
it. Plaintiffs did not, however, choose to argue that the letter
unconstitutionally retaliated against them. Plaintiffs also failed to
raise this claim in the Circuit Court.

A case on point is Button v. Harden, 814 F.2d 382 (7th Cir. 1987). In
that case, Button, a tenured teacher, was fired by the school board. An
administrative hearing followed, in which the hearing officer found that
the firing should be upheld. Button appealed to an Illinois circuit
court, which affirmed his dismissal. Button then brought a § 1983
action in federal court alleging that his firing had been in retaliation
for his exercise of his First Amendment right of free speech. The
district court dismissed the case on grounds of res judicata and Button
appealed.

On appeal, Button claimed that neither the hearing officer nor the
circuit court ever determined whether he was a victim of unconstitutional
retaliation. According to the Seventh Circuit, Button had two choices
after receiving the hearing officer's decision. First, Button could have
immediately filed his § 1983 claim. Second, Button could file suit in
circuit court for judicial review of the hearing officer's findings. If
Button chose this route, he had to allege every ground for relief he had
against the hearing officer's decision.

Button chose the second path but did not raise the retaliation argument
in circuit court. The Seventh Circuit, relying on Edwards, held that
Button could have brought his First Amendment claim in the circuit court
proceedings; therefore, Button's § 1983 action was barred by res
judicata.

Like Button, Plaintiffs could have brought their retaliation claim in
circuit court, thereby having an opportunity to have the issue fully and
fairly litigated. Plaintiffs, however, failed to raise their claim in
circuit court.

Ergo, Defendants' motion for summary judgment (d/e 12) is ALLOWED.

SO ORDERED.

Our website includes the main text of the court's opinion but does not include the
docket number, case citation or footnotes. Upon purchase, docket numbers and/or
citations allow you to research a case further or to use a case in a legal proceeding.
Footnotes (if any) include details of the court's decision.

Buy This Entire Record For
$7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.